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Bill C-115

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Enforcement

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Warrant

127. (1) A fishery officer with a warrant issued under subsection (2) may, for the purpose of seizing any fish or other thing under section 131, enter and search any place, including any premises, vessel or vehicle, in which the officer believes on reasonable grounds there is

    (a) an activity, work or undertaking that is being or has been carried on in contravention of this Act or the regulations; or

    (b) any fish or other thing referred to in section 131.

Authority to issue warrant

(2) A justice who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe that there is being carried on in any place any activity, work or undertaking referred to in paragraph (1)(a) or that there is any fish or other thing referred to in paragraph (1)(b) may issue a warrant authorizing the fishery officer named in it to enter the place and search for and seize the fish or other thing, subject to any conditions that may be specified in the warrant.

Where warrant not necessary

128. A fishery officer may exercise the powers referred to in section 127 without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain a warrant.

Powers during search

129. In carrying out a search of a place under section 127 or 128, a fishery officer may exercise the powers described in section 123.

Entry

130. A fishery officer or fishery guardian or any person acting under the authority of a fishery officer or fishery guardian may, while carrying out an inspection or search under this Act, enter on and pass through or over private property without being liable for trespass or, in Quebec, without the owner of the property having the right to object to that use of the property.

Seizure

Seizure

131. A fishery officer or fishery guardian may seize

    (a) any fish or other thing, including a vessel or vehicle, that the officer or guardian believes on reasonable grounds was obtained by or used in, or will afford evidence in respect of, the commission of an offence or a violation under this Act; or

    (b) any fish that the officer or guardian believes on reasonable grounds

      (i) was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations, or

      (ii) has been intermixed with fish referred to in subparagraph (i).

Release of seized fish

132. Notwithstanding sections 133 to 152, a fishery officer or fishery guardian who seizes any fish under this Act may, at the time of the seizure or within a reasonable time thereafter, return to the water any fish that the officer or guardian believes to be alive.

Retention of seized things

133. (1) A fishery officer or fishery guardian who seizes any fish or other thing under this Act may retain it or deliver it into the custody of any person the officer or guardian considers appropriate.

Examination or delivery into custody

(2) A person who is given custody of any fish or other thing under subsection (1) shall, on the request of a fishery officer or fishery guardian at any reasonable time, make the fish or thing available for inspection by, or deliver it into the custody of, the officer or guardian.

Perishables

134. A fishery officer or fishery guardian who has custody of any fish or other thing seized under this Act that is perishable or susceptible to deterioration may dispose of it in the prescribed manner, and the proceeds of the disposition shall be paid to the Receiver General.

Return of seized things on deposit of security

135. Subject to section 132, the court, in the case of proceedings for an offence under this Act, or a Tribunal, in the case of proceedings in relation to a violation, may order that any fish or other thing that is seized under this Act and that has not been forfeited be returned to the holder or, where there is no holder, to the person from whom it was seized, if security is given to Her Majesty in right of Canada in a form and amount that is satisfactory to the court or the Tribunal, as the case may be.

Retention of Seized Things

Return of seized things where no proceeding begun

136. (1) Subject to this section and section 132, any fish or other thing seized under this Act or any proceeds realized from its disposition shall, within a period of ninety days after the day of the seizure, be returned to the holder or, where there is no holder, to the owner or the person from whom it was seized.

Seized things retained where proceeding begun

(2) Any fish or other thing or proceeds referred to in subsection (1) may be retained until it or the proceeds are forfeited or the proceeding is finally concluded, if, before the expiration of the period referred to in that subsection,

    (a) proceedings are commenced in relation to an offence under this Act; or

    (b) in the case of

      (i) a fish referred to in paragraph 131(b), a notice of major violation referred to in section 102, notice of election referred to in section 103 or notice of the assessment of a monetary penalty referred to in section 106 in relation to the fish is completed and served, or

      (ii) any other fish or other thing, a notice of major violation referred to in section 102 or notice of election referred to in section 103 in relation to that fish or thing is completed and served.

Order to extend retention of things seized

(3) Where the court or Tribunal, as the case may be, is satisfied, on the application of the Minister, in the case of proceedings with respect to an offence, or a case presentation officer, in the case of proceedings with respect to a violation, within the period referred to in subsection (1), that retention of the fish or thing for a longer period is justified in the circumstances, the court or Tribunal may make an order permitting the fish or thing to be retained for any further period that may be specified by it.

Forfeiture and Disposition

Proceedings in relation to offence

137. (1) Where a person or fishing vessel is convicted of an offence under this Act, the court shall, in addition to any other punishment imposed, order the forfeiture to Her Majesty in right of Canada of any fish that was seized under this Act and that was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations, or any proceeds realized from its disposition.

Forfeiture of things used to commit offence

(2) Where a person or fishing vessel is convicted of an offence under this Act, the court may, in addition to any other punishment imposed, order the forfeiture to Her Majesty in right of Canada of any thing that was seized under this Act and that was obtained by or used in the commission of the offence, or any proceeds realized from its disposition.

Forfeiture where no conviction

(3) Where a person or fishing vessel is not convicted of an offence under this Act, the court may nevertheless order the forfeiture to Her Majesty in right of Canada of any fish that was seized under this Act and that is established to have been caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations, or of any proceeds realized from its disposition.

Proceedings in relation to violation

138. (1) The Tribunal, on allowing a proceeding with respect to a major violation or confirming the assessment of a monetary penalty for a minor violation, shall order the forfeiture to Her Majesty in right of Canada of any fish that was seized under this Act and that was caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations, or any proceeds realized from its disposition.

Forfeiture of things used to commit violation

(2) The Tribunal, on allowing a proceeding with respect to a major violation, may order the forfeiture to Her Majesty in right of Canada of any thing that was seized under this Act and that was obtained by or used in the commission of the major violation, or any proceeds realized from its disposition.

Forfeiture where proceedings dismissed

(3) The Tribunal, on dismissing a proceeding referred to in subsection (1), may nevertheless order the forfeiture to Her Majesty in right of Canada of any fish that was seized under this Act and that is established to have been caught, killed, processed, transported, purchased, sold or possessed in contravention of this Act or the regulations, or of any proceeds realized from its disposition.

Notice of forfeiture

139. Where a fishing vessel is forfeited in relation to an offence, the Minister, or, where a fishing vessel is forfeited in relation to a violation, a case presentation officer, shall forthwith give notice of the forfeiture to the owner of the fishing vessel, a person holding any maritime lien against the fishing vessel and a person holding any like interest, known to the Minister at the time of the giving of the notice.

Forfeiture where ownership not ascertainable

140. (1) Subject to section 132, where the ownership of any fish or other thing seized under this Act cannot be ascertained at the time of the seizure, the fish or thing is thereupon forfeited to Her Majesty in right of Canada.

Exception

(2) Notwithstanding section 142, any fishing gear or equipment that is forfeited under subsection (1) may be disposed of immediately on its forfeiture, in such a manner as the Minister directs.

Forfeiture on consent

141. (1) Where the person from whom any fish was seized under this Act consents to its forfeiture, the fish is thereupon forfeited to Her Majesty in right of Canada.

Disposition of forfeited fish

(2) Any fish that is forfeited under subsection (1) may be disposed of immediately on its forfeiture, in such a manner as the Minister directs.

Disposition of forfeited things

142. Subject to sections 144 to 152, any fish or other thing, or any proceeds realized from its disposition, forfeited under this Act shall be disposed of after the final conclusion of the proceedings in relation to the forfeiture, in such a manner as the Minister directs.

Return of things not forfeited

143. (1) Subject to subsection (2), any fish or other thing that is seized under this Act, or any proceeds realized from its disposition, and that is not forfeited shall, after the final conclusion of the proceedings in relation to the fish or thing, be returned to the person from whom the fish or thing was seized.

Exception

(2) A fish or other thing that is seized in connection with the commission of an offence or violation may be

    (a) retained until any fine, monetary penalty or amount that constitutes a debt due to Her Majesty in right of Canada under subsection 118(1) or 177(1) in relation to the offence or violation is paid; or

    (b) sold or otherwise disposed of in satisfaction of the fine, monetary penalty or debt referred to in paragraph (a), and any proceeds realized from its disposition may be applied in payment thereof.

Relief from Forfeiture

Application by person claiming interest

144. (1) Where any thing, other than fishing gear or equipment that has been disposed of pursuant to subsection 140(2) or fish, is forfeited, any person who claims an interest in the thing may, within a period of thirty days after receiving the notice of forfeiture, apply for an order under section 147 to the superior court of the province in which the seizure took place or that has jurisdiction with respect to the seizure pursuant to section 9 of the Canadian Laws Offshore Application Act.

Extension

(2) On the application of any person entitled to make an application under subsection (1), the court may extend the period within which the person may make an application under that subsection by any amount of time the court considers appropriate.

Date of hearing

(3) A day not less than thirty days after the date of filing of the application under subsection (1) shall be fixed for the hearing of the application.

Notice

(4) The applicant shall serve a notice of the application under subsection (1) and of the hearing of it on the Attorney General of Canada at least fifteen days before the day fixed for the hearing.

Return where security given

145. The Minister may, at any time after an application has been made under section 144, order the thing seized to be returned to the applicant if security is given to Her Majesty in right of Canada in a form and amount that is satisfactory to the Minister.

Disposition of thing

146. (1) Notwithstanding that an application has been made under section 144 in respect of a thing, the Minister may, by motion, request the authorization of the court to dispose of the thing, and with that authorization may order that the thing be disposed of.

Notice of application for authorization

(2) Where the Minister makes a request under subsection (1), the Minister shall give notice of the request and of the hearing of it at least thirty days before the day fixed for the hearing to every person who, to the knowledge of the Minister, has an interest in the thing and, where the thing is a fishing vessel, to the owner of the vessel and to every person referred to in section 139.

Authorization

(3) The court may grant the authorization referred to in subsection (1) where, in its opinion, the thing is deteriorating.

Proceeds of disposition

(4) The Minister shall hold the proceeds of disposition of the thing until any claim under section 144 in respect of the thing has been finally disposed of.

Order by court

147. On receipt of an application under section 144, where it is made to appear to the satisfaction of the court

    (a) that the applicant is innocent of any complicity in the violation that resulted in the forfeiture and of any collusion in relation to that violation with the holder who was liable for the violation, and

    (b) that the applicant exercised all reasonable care

      (i) in respect of the person permitted to obtain possession of the thing in respect of which the application is made, to satisfy the person that the thing was not likely to be used contrary to this Act or the regulations, or

      (ii) in the case of a secured creditor, in respect of the debtor,

the court shall make an order declaring that the applicant's interest is not affected by the forfeiture and declaring the nature and value of that interest.

Ranking of applicants

148. Where there is more than one person who claims an interest in a thing, a court hearing an application under section 144 with respect to the thing may, on application by the Attorney General of Canada or any of those persons, determine the rank of the interests of the persons.

Appeal

149. The applicant or the Minister may appeal from an order made under section 147 to the court of appeal of the province in which the order was made, and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to that court from orders or judgments of a judge.

Application to Minister

150. (1) Subject to this section, the Minister shall, on application made by any person who has obtained an order pursuant to section 147 which is a final order,

    (a) except in the case of any thing disposed of under subsection 134, direct that the thing to which the interest of the applicant relates or the proceeds of disposition of the thing be returned to the applicant; or

    (b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

Exception

(2) A thing or proceeds of disposition directed to be returned under paragraph (1)(a) or an amount directed to be paid under paragraph (1)(b) may be retained until any costs incurred in the seizure, retention or disposition of the thing are paid.

Liens against fishing vessels

(3) If the thing directed to be returned under paragraph (1)(a) is a fishing vessel, a lien attaches to the fishing vessel for the amount of any costs referred to in subsection (2), which lien has priority over all other rights, interests, claims and demands whatever, excepting only claims for wages of seamen under the Canada Shipping Act.

Discharge of encumbrances

151. A court may, on ex parte application of the Minister, make an order directing the registrar to register a discharge of any interest recorded against a thing the title to which is required to be registered and that is disposed of under this Act, where the court is satisfied that any person in whose favour the interest was registered was given notice in accordance with subsection 146(2).

Her Majesty not liable for shortfall

152. Her Majesty in right of Canada is not liable for any difference between the proceeds of disposition of any thing disposed of under this Act and the fair market value of the thing.

Other Enforcement Measures

Arrest

153. (1) Any fishery officer, fishery guardian or peace officer may arrest without warrant a person or fishing vessel who that officer or guardian believes, on reasonable grounds, has committed an offence against this Act or any of the regulations, or who the officer or guardian finds committing or preparing to commit an offence against this Act or any of the regulations.

Use of force

(2) A fishery officer or fishery guardian may, in the manner and to the extent prescribed, use force that is intended or is likely to disable a foreign fishing vessel, if the fishery officer or fishery guardian

    (a) is proceeding to lawfully arrest a foreign fishing vessel or to lawfully arrest the master or other person in command of such a vessel; and

    (b) believes on reasonable grounds that the force is necessary for the purpose of that arrest.

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